Opinion
Case No. C-1-98-858
May 14, 2002
Donald Francis Frei, [COR LD NTC], Joel Robert Chambers [COR LD NTC], Theodore R. Remaklus [COR LD NTC], Wood, Herron Evans, Cincinnati, OH, Jennifer Berger [COR NTC], John M. Cooper [COR NTC], James J. Murphy [COR NTC], Bryan Cave LLP, Washington, DC, for Plaintiff.
Stephen Joseph Butler [COR LD NTC], Thompson Hine LLP, Scott Kenneth Seibel [COR NTC], Kenneth Franklin Seibel [COR LD NTC], Mark Joseph Byrne [COR NTC], Jacobs, Kleinman, Seibel McNally, Cincinnati, OH, Thomas L. Allen [COR LD NTC], Kirsten R. Rydstrom [COR LD NTC], Barry J. Coyne [COR LD NTC], W. Thomas McGough [COR LD NTC], Frederick H. Colen [COR LD NTC], Reed Smith Shaw McClay LLP, Pittsburgh, PA, for Defendant.
Stephen Joseph Butler [COR LD NTC], Thompson Hine LLP, Mark Joseph Byrne [COR NTC], Scott Kenneth Seibel [COR NTC], Jacobs, Kleinman, Seibel McNally, Cincinnati, OH, Thomas L. Allen [COR LD NTC], Kirsten R. Rydstrom [COR LD NTC], Barry J. Coyne [COR LD NTC], W. Thomas McGough [COR LD NTC], Frederick H. Colen [COR LD NTC], Reed Smith Shaw McClay LLP, Pittsburgh, PA, for counter-claimant.
Donald Francis Frei, [COR LD NTC], Joel Robert Chambers [COR LD NTC], Theodore R. Remaklus [COR LD NTC], Wood, Herron Evans, Cincinnati, OH, Jennifer Berger [COR NTC], John M. Cooper [COR NTC], James J. Murphy [COR NTC], Bryan Cave LLP, Washington, DC, for counter-defendant.
ORDER
This matter is before the Court on Defendant Medrad, Inc.'s ("Medrad's") Motion for Clarification of the Court's February 19, 2002 Order (Doc. No. 274) and Motion For Leave to File Its Second Amended Answer and Counterclaim of Defendant Medrad, Inc., to Fourth Amended Complaint (Doc. No. 275) and Plaintiff Liebel-Flarsheim Company's ("L-F's") Motion For Entry of Final Judgment Pursuant to Fed.R.Civ. 54(b) (Doc. No. 276).
I. GENERAL BACKGROUND
This action involves United States Patent Nos. 5,456,669 ("the `669 patent"), 5,658,261 ("the `261 patent"), 5,662,612 ("the `612 patent"), and 5,928,197 ("the `197 patent"), a series of patents relating to medical devices known as powered injectors. Plaintiff L-F instituted the present action alleging that injectors manufactured and sold by Defendant Medrad infringe the `669, `261, `612, and `197 patents. L-F's complaint also includes antitrust and state law claims. Medrad has counterclaimed seeking a declaratory judgment of non-infringement, invalidity, and unenforceability of the `669, `261, `612, and `197 patents.
Numerous summary judgment motions involving a multitude of issues have been filed in this action. In ruling on these motions, the Court has resolved claim construction issues and has ruled that Medrad's products do not infringe the `669, `261, `612, and `197 patents. Issues that are still unresolved are L-F's antitrust and state law claims and Medrad's counterclaims of invalidity and unenforceability of the patents.
Medrad's answer also includes a counterclaim seeking a declaratory judgment that L-F cannot assert infringement by virtue of unclean hands, laches, and/or equitable estoppel. This counterclaim is moot in light of the Court's finding of non-infringement.
L-F has filed a motion asking the Court to enter final judgment with respect to its finding of non-infringement, and to dismiss as moot, Medrad's invalidity and unenforceability counterclaims. (Doc. No. 276). Success on its motion would allow L-F to immediately appeal the non-infringement finding while proceeding to trial on its antitrust and state law claims. Medrad has filed a motion for clarification asking the Court to find that the non-infringement finding does not moot Medrad's invalidity and unenforceability counterclaims. (Doc. No. 274). Medrad also opposes certification of the non-infringement finding as a final judgment. (Doc. No. 282). If Medrad succeeds, the parties would proceed to trial on the antitrust and state law claims and the invalidity and unenforceability counterclaims. Only after a trial on these issues would the non-infringement finding be appealable.
Because claim construction is part of patent infringement analysis, this Court's findings with respect to claim construction would be included in any such appeal.
II. DISCUSSION
Two basic issues underlie the motions filed by the parties: (1) whether having decided the infringement issue in favor of Medrad, the Court has the discretion to dismiss Medrad's invalidity and unenforceability counterclaims as moot, and (2) whether the Court should certify its non-infringement finding as a final judgment pursuant to Fed.R.Civ.P. 54(b).
a. Mootness
Having found non-infringement in favor of Medrad, L-F argues that the Court should dismiss Medrad's invalidity and unenforceability counterclaims as moot. (Doc. No. 276, p. 9) Medrad, on the other hand, argues that this Court does not have the authority to dismiss its invalidity and unenforceability counterclaims as moot because, according to Medrad, the United States Supreme Court has held that a finding of non-infringement does not moot an invalidity counterclaim. See Cardinal Chemical Co. v. Morton Int'l., Inc., 508 U.S. 83 (1993). (Doc. No. 274).
In Cardinal Chemical, the Supreme Court rejected the Federal Circuit's practice of routinely vacating declaratory judgments of invalidity as moot when it affirmed a district court's determination of non-infringement. 508 U.S. at 102-03. The Court concluded that an appellate court's affirmation of a district court's non-infringement ruling did not affect the appellate court's power to review the invalidity issue. Id. at 98. Furthermore, the Court observed that there were strong public policy and practical reasons for addressing the issue of invalidity regardless of the outcome of the question of infringement. Id. at 102-01. Thus, the Court ruled that the Federal Circuit should not automatically vacate a district court's ruling of invalidity as moot based solely on a finding of non-infringement. Id. at 103-04.
While Cardinal Chemical is instructive, it is not dispositive of the issue currently before this Court — whether a district court has the discretion to dismiss an invalidity counterclaim as moot in light of a finding of non-infringement. The Cardinal Chemical court specifically limited its holding to "the jurisdiction of an intermediate appellate court — not the jurisdiction of either a trial court or [the Supreme] Court"). Id. at 95. Furthermore, while indicating a preference for resolving validity questions, the Cardinal Chemical court did not establish a per se rule that an invalidity counterclaim could never be mooted by a finding of non-infringement. Rather, the Court held that declaring an invalidity counterclaim moot based solely on a finding of non-infringement was an abuse of discretion on the part of an appellate court:
In rejecting the Federal Circuit's practice we acknowledge that factors in an unusual case might justify that court's refusal to reach the merits of a validity determination — a determination which it might therefore be appropriate to vacate. A finding of non-infringement alone, however, does not justify such a result. Nor does anything else in the record of this case. The two patents at issue here have been the subject of three separate lawsuits, and both parties have urged the Federal Circuit to resolve their ongoing dispute over the issue of validity; it would be an abuse of discretion not to decide that question in this case.Id. at 102-03 (emphasis added). Thus, the Court left open the possibility that even an appellate court could refuse to reach to merits of an invalidity question if other factors, in addition to a finding of non-infringement, weighed in favor of finding the invalidity question moot.
Confusion over the ultimate holding of Cardinal Chemical stems, in part, from the following statement that appears in the case: "[the invalidity counterclaim] did not become moot when [the appellate] court affirmed the finding of non-infringement". Cardinal Chemical, 508 U.S. 98. This statement's meaning, however, is only apparent when read in the context of the entire opinion. The statement appears in the section of the opinion in which the Court concludes that a controversy continues to exist for the purpose of establishing jurisdiction until a court is made aware of a change in circumstances that eliminates the controversy. Id. Because no such change of circumstances had occurred in Cardinal Chemical, the Court concluded that the appellate court had the power (i.e., jurisdiction) to review the invalidity issue. Id. The statement's inclusion in a discussion of jurisdiction indicates that the Court was referring to jurisdictional mootness. See Morton Int'l, Inc. v. Cardinal Chemical Co., 967 F.2d 1571, 1574 (Fed. Cir. 1992) (Nies, C.J. dissenting) ("`Mootness' is jurisdictional when the dispute between the parties, or at least an issue in the case, no longer exists. That is, the issue no longer presents an actual case or controversy. If an issue is moot in this sense, a court has no discretion but must dismiss for lack of jurisdiction. (citations omitted)").
The ultimate holding of the Cardinal Chemical case was that dismissing an invalidity counterclaim as moot based a finding of non-infringement alone and in the absence of any other factors justifying the refusal to reach the merits of a validity determination was an abuse of discretion, implying that if appropriate factors exist, an invalidity counterclaim may be moot. Cardinal Chemical, 508 U.S. at 102-03. This type of mootness is referred to as prudential mootness. See Morton, 967 F.2d at 1574. ("An issue is also said to be `mooted' when a court, having decided one dispositive issue, chooses not to address another equally dispositive issue. In this sense, mootness means only that a decision on another issue would have no practical significance. This type of mootness results from prudential, not jurisdictional, considerations." (citations omitted)).
The issue of whether a district court, versus an appellate court, may dismiss an invalidity counterclaim as moot following a finding of non-infringement was addressed in Phonometrics, Inc. v. Northern Telecom Inc., 133 F.3d 1459 (Fed. Cir. 1998). In that case, the plaintiff patent owner brought an action against various manufacturers and sellers of telephone equipment alleging infringement of its patent. Id. at 1461-63. The defendants counterclaimed seeking a declaratory judgment for non-infringement, invalidity, and unenforceability of the patent. Id. The district court ruled in favor of the defendants on the issue of non-infringement and dismissed their invalidity and unenforceability counterclaims as moot. The plaintiff appealed both the finding of non-infringement and the dismissal of the defendants' counterclaims, arguing it had a "general interest in a judicial determination of its patent's validity." Id. at 1468.
With respect to the dismissal of the counterclaim for invalidity, the appellate court concluded that it was within a district court's discretion to dismiss the counterclaims as moot where it makes a finding of non-infringement:
We have previously held that a district court has discretion to dismiss a counterclaim alleging that a patent is invalid as moot where it finds no infringement. See Nestier Corp. v. Menasha Corp. Lewisystems Div., 739 F.2d 1576, 1580-81, 222 USPQ 747, 751 (Fed. Cir. 1984) ("[T]here was no reversible error or abuse of discretion . . . in the District Court's withholding of judgment on the issues related to the . . . patent's validity — despite the jury's having found the patent not invalid — in light of the jury's finding of noninfringement."); see also Leesona Corp. v. United States, 208 Ct.Cl. 871, 530 F.2d 896, 906 n. 9, 185 USPQ 156, 163 n. 9 (adopted as Opinion of Court of Claims at 208 Ct.Cl. 871, 530 F.2d 896, 192 USPQ 672 (1976)) ("While the better practice is to treat both the validity and infringement issues . . . it is not always necessary to do so. Where, as here, noninfringement is clear and invalidity is not plainly evident it is appropriate to treat only the infringement issue." (citations omitted)).Id. The court concluded that the Cardinal Chemical case was distinguishable because it involved the authority of an intermediate appellate court rather than a district court:
The Supreme Court's decision in Cardinal Chemical Co. v. Morton International, 508 U.S. 83, 113 S.Ct. 1967, 124 L.Ed.2d 1, 26 USPQ2d 1721 (1993), does not preclude this discretionary action by the district court. Cardinal Chemical simply prohibits us, as an intermediate appellate court, from vacating a judgment of invalidity when we conclude that a patent has not been infringed, and therefore has no bearing on the district court's actions in this case.Id.
See also, Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1060 (Fed. Cir. 1995), cert. denied, 516 U.S. 1093 (1996) ( Cardinal Chemical addressed "the propriety of appellate jurisdiction over final judgments respecting infringement and validity. . ."); Data Race, Inc. v. Lucent Technologies, Inc., 73 F. Supp.2d 698, 741 (W.D. Tex. 1999) ("Although the United States Supreme Court has overturned the Federal Circuit's former practice of vacating on appeal validity findings following rulings of non-infringement, the Supreme Court `stressed the limited nature of the ruling, reviewing the appellate practice but not any trial-level conventions of finding a validity determination moot upon non-infringement.'" (citations omitted)); America Online, Inc. v. ATT Corp., 64 F. Supp.2d 549, 571 (E.D. Va. 1999), aff'd in part, vacated in part, 243 F.3d 812 (4th Cir. 2001) ("The appellate courts and district courts, including this one, which have considered the holding of Cardinal Chemical have all come to the conclusion that the case does not apply at the trial level." (citations omitted)).
In addition to holding that dismissal of an invalidity counterclaim is discretionary, the Phonometrics court also concluded that the plaintiff did not have a statutory right to appeal the case because as the patent owner, it was not aggrieved by the dismissal of the defendants' invalidity and unenforceability counterclaims. Phonometrics, 133 F.3d at 1468.
It is Medrad's position that Phonometrics is not controlling in the present case. (Doc. No. 281, pp. 2-3). In support of its position, Medrad cites to Fin Control Systems Pty., Ltd. v. OAM, Inc., 265 F.3d 1311 (Fed. Cir. 2001), a Federal Circuit case decided after the Phonometrics case. (Doc. No. 281, p. 4). In Fin, the district court granted summary judgment of non-infringement in favor of the defendant on plaintiff's claims of patent infringement. Id. at 1316-17. The district court also, sua sponte, granted summary judgment in favor of the defendant on its invalidity and unenforceability counterclaims. Id. at 1321. The plaintiff appealed. Id. The Federal Circuit upheld the district court's grant of summary judgment on defendant's non-infringement counterclaim. Id. at 1321. However, the appellate court vacated the district court's grant of summary judgment on the invalidity and unenforceability counterclaims because it concluded that the district court acted improperly in granting judgment in the absence of a motion by one of the parties. Id.
Before reaching its holding, the court, as a Preliminary matter, concluded that the district court had granted summary judgment on the issue of invalidity and unenforceability as well as the issue of infringement. As part of this conclusion, the court observed the following:
[B]ecause [the defendant] had raised the alleged invalidity and unenforceability of the `359 patent in its counterclaim, the court was obligated to rule on these matters as a prerequisite to entering judgment in the case. Cardinal Chem. Co. v. Morton Int'l, Inc., 508 U.S. 83, 93-94, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993) (a finding of noninfringement does not moot invalidity or unenforceability defenses when they are raised in a counterclaim); Gen. Elec. Co. v. Nintendo Co., 179 F.3d 1350, 1356, 50 USPQ2d 1910, 1914-15 (Fed. Cir. 1999) (same).Id. at 1321. Beyond this single statement, the issue of whether the district court had the discretion to dismiss the invalidity and unenforceability counterclaims as moot in light of the finding of non-infringement was not before the court nor was it addressed by the court.
The Fin court's observation regarding the viability of invalidity and unenforceability counterclaims after a finding of non-infringement appears to directly contradict the holding of Phonometrics. Medrad argues that the cases are distinguishable because Phonometrics involved a challenge by the plaintiff patent owner rather than the defendants. According to Medrad, Phonometrics is limited to the rare situation where a plaintiff patent owner challenges the dismissal of a defendant's invalidity counterclaim. (Doc. No. 281, p. 2).
In support of its argument, Medrad cites to a number of district court cases that found invalidity counterclaims were not moot as a result of a finding of non-infringement. (Doc. No. 281, pp. 4-5). See Kudlacek v. DBC, Inc., 115 F. Supp.2d 996 (N.D. Iowa 2000), aff'd, 25 Fed.Appx. 837 (Fed. Cir. 2001); Mitek Surgical Prods., Inc. v. Arthrex, Inc., 21 F. Supp.2d 1309 (D. Utah 1998), aff'd, 230 F.3d 1383 (Fed. Cir. 2000); Display Solutions, Inc. v. Daktronics, Inc., 178 F.R.D. 626 (N.D. Ga. 1997), aff'd, 185 F.3d 882 (Fed. Cir. 1998); Respironics, Inc. v. ResMed Ltd., Civ. A. No. 95-151 (W.D. Pa Nov. 21, 2001). These cases do nothing but demonstrate the confusion of district courts regarding this issue because there are numerous district court cases that come to the opposite conclusion. See Biogen, Inc. v. Berlex Labs., Inc., 113 F. Supp.2d 77, 124-25 (D. Mass. 2000); Data Race, Inc. v. Lucent Technologies, Inc., 73 F. Supp.2d 698, 741 (W.D. Tex. 1999); Schering Corp. v. Amgen, Inc., 35 F. Supp.2d 375, 378 (D. Del. 1999), aff'd in part, 222 F.3d 1347 (Fed. Cir. 2000). Medrad further contends, however, that the cases it cited support its interpretation of Phonometrics because they were all affirmed by the Federal Circuit post-Phonometrics. (Doc. No. 281, pp. 4-5). Medrad's argument is unpersuasive because the cases were affirmed without opinion or the issue of whether a district court could dismiss an invalidity counterclaim as moot after a determination of non-infringement was not an issue on appeal. Furthermore, Schering, a case that found an invalidity counterclaim could be dismissed as moot, was also affirmed by the Federal Circuit post-Phonometrics.
The Court disagrees. While Medrad's argument is appealing on the surface, it ignores both the language of Phonometrics and Fin. The Phonometrics court explained the rationale for its holding in detail, including citing to prior case law and distinguishing the Cardinal Chemical case. Phonometrics, 133 F.3d at 1468. Nowhere in the explanation of its holding did the court indicate that its reasoning was based on the plaintiff's status as the patent owner. In fact, directly following its holding, the court offered, as an additional point, the fact that the plaintiff, as the patent owner, did not have the statutory right to appeal the district court's dismissal of the defendant's invalidity counterclaim:
Moreover, [the plaintiff] was not aggrieved by the dismissal of its opponents' motion, and therefore has no statutory right to appeal that decision here, despite its argument that it has a general interest in a judicial determination of its patent's validity.Id. at 1468. Thus, where the plaintiff's status (as a party not aggrieved by the dismissal of the defendant's counterclaim) was relevant to the court's finding that it did not have a statutory right to appeal, the court explicitly referred to that status. Consequently, this Court believes that if the plaintiff's status as the patent owner were relevant to the Phonometrics court's holding regarding a district court's discretion to dismiss an invalidity counterclaim as moot, the court would have so stated. The court's opinion in Fin does nothing to alter this conclusion. Fin did not involve a defendant's challenge to the dismissal of a counterclaim nor is there any language in the opinion to indicate that the Fin court viewed its observation as only relevant to situations where a defendant challenges the dismissal of a counterclaim. Quite simply, if the observation in Fin is read as prohibiting a district court from dismissing an invalidity counterclaim as moot under any circumstances, then Fin directly contradicts the holding of Phonometrics.
The reference to the "opponents' motion" in this quote appears to be a misstatement. When read it context, it is clear the court was referring to the dismissal of the defendants' counterclaims rather than a dismissal of a motion.
In situations where a later decision of an appellate panel is inconsistent with an earlier panel's decision, the prior decision is binding precedent until the appellate court sitting en banc overrules the prior decision. Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Salmi v. Sec'y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Therefore, this Court, following the holding of Phonometrics, concludes that a district court, after finding non-infringement, has discretion to dismiss a invalidity and unenforceability counterclaims as moot in the appropriate circumstances.
For a number of reasons, this Court concludes that Medrad's invalidity and unenforceability counterclaims should be dismissed as moot. First, the invalidity issues raised by Medrad will require a large expenditure of judicial resources, both at the trial court and appellate court levels. The invalidity issues, which cannot be resolved on summary judgment, are numerous, complex, and not easily resolvable and will, therefore, require a lengthy trial. Furthermore, the Court faces the possibility of conducting such trial not once but twice. A number of the invalidity issues raised by Medrad turn on the manner in which the claims are construed. L-F has already stated that it will appeal this Court's claim construction. Thus, this Court faces the possibility of conducting a lengthy trial on the invalidity and unenforceability issues, which could ultimately be a complete waste of time if the Federal Circuit disagrees with this Court's findings with respect to claim construction.
The parties have indicated that a trial on the antitrust and state law claims and invalidity and unenforceability counterclaims would take approximately three to four weeks with the validity portion consuming at least half that time. (Doc. No. 279, Tr. of 3/12/02 Telephone Conf., p. 27-28).
Second, several of the invalidity and unenforceability issues involve the conduct of attorneys that represented L-F during the prosecution of the patents at issue in this case. These attorneys are members of the same law firm as L-F's current trial counsel. Medrad has indicated that it intends to call these attorneys as witnesses at trial. (Doc. No. 279, Tr. of 3/12/02 Telephone Conf., p. 24). As a result of the connection of L-F's trial counsel to these potential witnesses, the very real possibility exists that L-F's trial counsel would be forced to withdraw from this case. Given the size and complexity of this case, such an event would cause a great deal of expense in terms of time, money, and judicial resources. However, if trial proceeds on only the antitrust and state law claims, L-F's trial counsel could continue in his representation of L-F.
Finally Medrad would not be substantially prejudiced by the dismissal of its invalidity and unenforceability counterclaims. In the event the Federal Circuit reverses this Court's non-infringement and/or claim construction rulings, Medrad could once again raise its invalidity and unenforceability counterclaims when the case is remanded back to this Court. Even if the Federal Circuit affirms this Court's rulings, the dismissal of Medrad's counterclaims would be without prejudice, and Medrad would, therefore, be able to reinstitute its claims in a declaratory judgment action.
For these reasons, Medrad's counterclaims for invalidity (Doc. No. 82, Counterclaim ¶ 10), unenforceability (Doc. No. 82, Counterclaim ¶ 11), and unclean hands, laches, and/or equitable estoppel (Doc. No. 82, Counterclaim ¶ 12) are DISMISSED without prejudice as moot. Medrad's Motion for Clarification of the Court's February 19, 2002 Order (Doc. No. 274) is DENIED and its Motion For Leave to File Its Second Amended Answer and Counterclaim of Defendant Medrad, Inc., to Fourth Amended Complaint (Doc. No. 275) is MOOT.
Defendant argues that the Court should not dismiss its counterclaims because it may seek attorneys' fees in the event that its unenforceability claim is found to be meritorious. Defendant has not, however, moved for fees, and the Court is not obliged to allow a claim to proceed to trial, increasing the fees on both sides of this action, solely in order for Defendant to establish its entitlement to fees.
b. Certification
L-F has moved this Court to certify its finding of noninfringement as a final judgment. (Doc. No. 276). Under Fed.R.Civ.P. 54(b), a district court may, in a case involving multiple claims, direct the entry of a final judgment as to one or more claims upon an express determination that there is no just reason for delay. When determining whether or not to certify a judgment as final, a district court must consider the equities involved as well as the interests of judicial administration. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8 (1980). The interests of judicial administration are considered in order "to assure that application of [Rule 54(b)] effectively `preserves the historic federal policy against piecemeal appeals." Id. Rule 54(b) requests for final certification should not be routinely granted. See id. at 10.
While L-F has presented extensive arguments as to why this Court is not precluded from entering a final judgment with respect to its non-infringement ruling, it has not provided a sufficient reason why this Court should enter such a judgment. The only mention by L-F of the prejudice it will suffer as a result of non-certification appears in its reply brief in which it states that non-certification will prolong L-F's inability to enjoy the "principal benefit of the patent system", "the right to exclude others from practicing the claimed invention for a fixed period of time." (Doc. No. 283, pp. 14-15). Beyond this general statement, L-F does not indicate to what it extent it might suffer as a result of non-certification. If the mere fact that a party could not enjoy the full benefits of the patent system was a sufficient justification for certification under Rule 54(b), virtually all rulings involving patent infringement would be routinely certified as final judgments. Clearly, this is not the intent of Rule 54(b). Curtiss-Wright, 446 U.S. at 8 ("Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims.").
Moreover, L-F's justification for certification does not outweigh the considerations against Rule 54(b) certification. It is apparent from the parties' words and actions to date that regardless of the outcome in this Court, its decision will be appealed to the Federal Circuit. By certifying the non-infringement finding as a final judgment, this Court assures that there will be a minimum of least two appeals to the Federal Circuit, the appeal of the non-infringement issue and the appeal of the antitrust and state law claims. If the Federal Circuit reverses on any issue, the case will be remanded back to this Court for further trial proceedings and more appeals will follow. On the other hand, if the non-infringement finding is not certified as a final judgment, only one appeal will be taken to the Federal Circuit, and if the Federal Circuit affirms, the case will be over. Clearly, judicial administration would be best served by minimizing the number of trial and appellate proceedings. Therefore, judicial efficiency weighs against certifying the non-infringement ruling as a final judgment.
If this Court certified its non-infringement ruling as a final judgment it would also certify its dismissal of Medrad's invalidity and unenforceability counterclaims as a final judgment in order that the Federal Circuit could resolve these issues at the same time.
For these reasons, L-F's Motion For Entry of Final Judgment Pursuant to Fed.R.Civ. 54(b) (Doc. No. 276) is DENIED.
III. CONCLUSION
• Medrad's invalidity, unenforceability, and unclean hands, laches, and equitable estoppel counterclaims as stated in Counterclaim paragraphs 10, 11, and 12 of its Amended Answer and Amended Counterclaim (Doc. No. 82) are DISMISSED without prejudice as moot.
• Defendant Medrad's Motion for Clarification of the Court's February 19, 2002 Order (Doc. No. 274) is DENIED;
• Defendant Medrad's Motion For Leave to File Its Second Amended Answer and Counterclaim of Defendant Medrad, Inc., to Fourth Amended Complaint (Doc. No. 275) is MOOT; and
• Plaintiff L-F's Motion For Entry of Final Judgment Pursuant to Fed.R.Civ. 54(b) (Doc. No. 276) is DENIED.